Leli Tan v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 31, 2018
• Docket: 13-70754
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 31 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LELI TAN, No. 13-70754

Petitioner, Agency No. A098-440-431

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted May 14, 2018 Pasadena, California

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

Leli Tan, a citizen of Indonesia, petitions for review of a Board of

Immigration Appeals (BIA) decision affirming the denial of her applications for

asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). We have jurisdiction under 8 U.S.C. § 1252, and we grant in part and deny

in part.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The government concedes that the BIA erroneously applied the REAL ID

Act’s credibility standards to Tan’s December 14, 2004 asylum application. See

Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir. 2010) (noting that we “apply

pre-REAL ID Act standards” to applications for relief filed “before May 11, 2005,

the effective date of the REAL ID Act.”). It urges us to nevertheless deny the

petition because of the BIA’s alternative finding that, even assuming Tan’s

credibility, she has not established eligibility for the sought relief.

In determining that Tan did not suffer past persecution, the BIA considered

several incidents of her past harm, but failed to consider that Tan and her daughter

were sexually assaulted and threatened with rape.1 “[T]hreats can in some

instances constitute persecution,” Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir.

2004), as can sexual assault, Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir.

1996). Because the agency failed to consider all relevant record evidence when

concluding that Tan did not suffer past persecution on account of her Chinese

ethnicity, we remand for reconsideration of her applications for asylum and

withholding of removal. See Shirazi-Parsa v. INS, 14 F.3d 1424, 1428 (9th Cir.

1994) (finding that the BIA erred by “failing to consider the totality of

circumstances” related to the petitioner’s past persecution), overruled on other

1 The agency minimized this event by characterizing it as “inappropriate touching,” which is squarely contradicted by the record.

2 grounds by Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996); cf. Cole v. Holder,

659 F.3d 762, 773 (9th Cir. 2011) (remanding a CAT application where the BIA

“mischaracterized the record” and “failed to give reasoned consideration” to other

“potentially dispositive” evidence).

The agency’s conclusion that, assuming Tan’s credibility, she did not meet

her burden of showing entitlement to relief under the CAT is supported by

substantial evidence. See Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007).

Tan did not submit evidence demonstrating that she was tortured in the past or that

she would be subject to torture in the future at the hands of or with the

acquiescence of the Indonesian government. See 8 C.F.R. §§ 1208.16(c)(4),

1208.18(a)(2). Therefore, we deny the petition as to Tan’s application for relief

under the CAT.

We grant the petition and remand for the agency to reconsider Tan’s

credibility under the correct, pre-REAL ID Act standard, and to reconsider her

applications for asylum and withholding of removal in light of all relevant record

evidence.

PETITION GRANTED IN PART, DENIED IN PART.